Chemical safety law that gives EPA more power passes Congress

The bipartisan measure represents the most sweeping environmental law to pass in decades.

Updated, Wednesday, June 8: The Senate Tuesday approved a major overhaul of Toxic Substances Control Act, sending it the President Obama, who is expected to quickly sign it. “When @POTUS signs #chemicalsafety reform into law there will finally be a cop on the beat to protect our kids from dangerous chemicals,” tweeted Sen. Tom Udall, one of the bill's main sponsors.

Friday, May 27: The normally divided Congress got together this week to take on a major overhaul of the 1976 Toxic Substances Control Act, giving the Environmental Protection Agency broad new authority to regulate chemicals in millions of products American use every day.

“When Americans go to the grocery store and hardware store, they assume products they buy have been tested and are safe; they aren’t,” Sen. Tom Udall, D-NM, one of the bill’s chief authors, said in a press call this week. “For the first time in 40 years we will have a working chemical safety law.”

The Frank R. Lautenberg Chemical Safety for the 21st Century Act, as the update is called, is the biggest environmental law to pass Congress in two decades. It was approved by the House 403-12 on Tuesday. The bill hit an unexpected snag in the Senate. Despite the broad bipartisan support for the bill, Sen. Rand Paul, R-Kentucky, is blocking a vote, saying he wants time to learn about the bill. He also says that businesses are always complaining to him that they're "regulated to death" and yet this bill "takes the power away from the states and creates a new federal regulatory regime."

The bill allows the EPA to evaluate the safety of tens of thousands of older chemicals that were impossible to regulate under existing law and strengthens the agency’s hand in reviewing new chemicals. It requires the agency to consider only safety and health – and not costs – when deciding whether a chemical presents “unreasonable risk.” It charges companies up to $25 million to pay for the reviews, and provides new protections for vulnerable groups such as children, the elderly and people with compromised immune systems.

If the EPA finds that a chemical poses a risk to any group of people, it must “impose restrictions sufficient to ameliorate the risk,” says Richard Denison, lead senior scientist for the Environmental Defense Fund, who has long worked on the bill.

The bill was shepherded through Congress by Udall and Sen. David Vitter, R-LA. The unlikely duo came together because the industry, public health and environmental groups all agreed that Toxic Substances Control Act was broken. Over 40 years, the EPA managed to use the law to test only a few hundred of the tens of thousands of chemicals in circulation. The prime example of the law’s weakness came when the EPA tried to use it to restrict asbestos. But a court overturned the ban in 1991, eviscerating the agency’s power to regulate existing chemicals.

In the the vacuum, some states, including California, Oregon and Washington, started to regulate toxic chemicals. These state efforts helped push the industry to the table to negotiate a new bill. They also proved a crux for efforts to pass the reform.

Sen. Barbara Boxer, D-CA, fought against the bill, because it would restrain states’ efforts to regulate toxic chemicals. More recently, she used her influence to narrow those restrictions. “I didn’t go on this bill; I changed it,” Boxer said at a recent press conference. “I wish I had the option to write the bill on my own. Believe me, it would have been much stronger. But I know if we want to make progress, we need to reach across the aisle.”

Under the final bill, state chemical regulations already on the books will remain in effect. Going forward, state action will be preempted while the EPA reviews a chemical. Once the EPA acts, its decision on whether a chemical is safe or needs to be restricted will trump any state action. States can request waivers or step in if EPA takes more than three and a half years to complete its evaluation.

States that pushed hard for fewer restrictions on their authority to regulate chemicals seemed ready to adapt to the new bill and eager for a stronger federal regulator. Ken Zarker, who manages the pollution prevention and regulatory assistance section of Washington State’s Department of Ecology, called the bill “workable” even though his state and others were disappointed that it will restrict states’ regulatory ability. Washington State legislature earlier this year banned several flame retardants in furniture and children’s products. Zarker’s agency was tasked with studying five additional chemicals and reporting back to the legislature on whether they too should be banned. Under the new toxics law, if the federal government decides to review these same chemicals, that could hamper speedier action by the state.

Still, Zarker says only a few states have the resources to review toxic chemicals. So, having a stronger federal cop on the beat, as provided by this bill, should be good for everybody. “At least it sets up a system; we currently don’t have one,” Zarker says. “We’ve got to start somewhere.”

But some health experts warn that although the measure is stronger than current law it will not provide what so many people want—timely, dependable information about the safety of the chemicals they and their children encounter every day. The bill requires the EPA to name the first ten chemicals it will evaluate within six month and within three and a half years be conducting risk evaluations of at least 20 high-priority chemicals. The bill sets a three-year deadline for the EPA to complete risk assessments of chemicals after designating them as high risk. The agency then would have two years to regulate.

The “glacial pace” of chemical reviews envisioned by the bill and the inadequate funding means that the EPA will be unable to provide consumers with the “proactive prevention that so many consumers are seeking,” Leonardo Trasande, an associate professor of pediatrics at New York University, said in an interview with High Country News.

“How can that be sufficient when there are thousands of highly produced chemicals without testing data?” Trasande wrote in a blog post. In his post and in his earlier article in the Journal of the American Medical Association, he outlined concerns that the new bill will fail to give the government adequate tools to protect vulnerable populations from the risks posed by synthetic chemicals. “A large—and growing—literature demonstrates that synthetic chemicals can disrupt the developing brains of children,” he writes.

Other public health experts are concerned about the way the EPA currently evaluates whether chemicals pose health risks. “Right now EPA’s risk assessment process is inadequate to fully characterize the risk for effects other than cancer. That’s a huge problem,” said Tracey Woodruff, who directs the program on reproductive health and the environment at the University of California, San Francisco. “That could allow a lot of chemicals to stay on the marketplace that might pose a public health risk.”

She’s worried the regulations to implement the new law could enshrine outdated EPA methods. For example, she said the agency must consider the multiple ways a person might be exposed to the same toxic chemical as well as the cumulative impact of a variety of chemicals.

And, of course, how the EPA implements the new law and how much funding the agency gets to do the work will have a huge impact on whether it will live up to its sponsors’ high hopes.